United States v. Leveto ( 2008 )

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Daniel Leveto appeals the District Court’s judgment of conviction for federal income tax fraud following a jury trial. He asserts a violation of his Sixth Amendment right to counsel, and he has made numerous challenges to evidentiary decisions made by the District Court. For the reasons that follow, we will affirm the judgment of the District Court.

I.

Leveto operated a veterinary hospital in Meadville, Pennsylvania. Internal Revenue Service auditors detected fraud on Leveto’s returns and they referred the matter to the I.R.S. Criminal Investigation Division. The I.R.S. initiated an undercover investigation that began in December of 1994. They obtained a mail cover, performed a public records check, conducted surveillance, and tasked an I.R.S. special agent to work undercover. The record provides the following facts.

Leveto joined an organization known as First American Research in the 1980’s. The group promoted the establishment of sham offshore trusts for the purpose of evading liability for federal income taxes. Leveto became a promoter of a book authored by the founder of the organization, entitled “Tax Free: How the Super Rich Do It.” He advertised the book in newspapers, listing his address for those who wished to make further inquiries. He received hundreds of responses.

In accord with the scheme promoted by the organization, Leveto “sold” his veterinary business to Center Company, a sham foreign trust purportedly located in the Turks and Caicos Islands. Center Company then distributed all of the veterinary clinic income to another sham foreign trust. This created an illusion that the veterinary clinic profits were distributed as foreign source income to foreign beneficiaries, eliminating federal income tax liability. Leveto and his wife then used debit cards and other means to spend or repatriate the funds, obscuring their control and ownership of these monies. In all, Leveto left $408,000 in unpaid taxes between 1991 through 2000.

Leveto promoted and sold the organization’s book to a confidential informant and to the undercover agent. Leveto also admitted to these people that he was involved in nothing more than a “charade or sham.” He admitted that he actually retained control of all of the gross receipts of the veterinary business, and that he paid only as much tax as he wanted to pay. Finally, he told both individuals where he kept a number of documents relating to the scam.

The I.R.S. undercover agent prepared a 27 page affidavit explaining Leveto’s tax evasion scheme. The affidavit accompanied the application for a search warrant, but it was not incorporated into the application. The search warrant application did have a general list of items of interest attached as an exhibit. The agent accompanied a United States attorney who presented the request for a search warrant to the Magistrate Judge. The Magistrate Judge sealed the affidavit to protect the identity of confidential sources and authorized a search warrant for Leveto’s residence and business. The undercover agent briefed other I.R.S. agents on the warrant and on the contents of the affidavit. They conducted the search the next day.

II.

On February 15, 2001, a Grand Jury returned an indictment against Leveto and others, and an arrest warrant was issued on December 15, 2001. Leveto fled, evading arrest until March of 2004.

After Leveto’s return to the Western District of Pennsylvania, the Magistrate Judge appointed counsel for him and ordered him to be detained. The District Court subsequently granted appointed counsel’s motion to withdraw due to a conflict of interest. At that point, Leveto expressed an interest in pro se representation, but paradoxically indicated to the District Court “I am in no way waiving my right to counsel.”

On June 7, 2004, the District Court conducted a hearing to determine Leveto’s intent with regard to representation.¹ At the hearing, the District Court instructed Leveto that he could not “have one foot in the counsel boat and one foot in the pro se boat.” Moreover, the District Court noted that it would interpret any equivocation on the issue of representation by Leveto as a request for counsel. Leveto was given an opportunity to confer with stand-by counsel at this hearing.

After consulting counsel, Leveto said: “I have decided to proceed pro se with [the attorney] as stand-by counsel.” The District Court then began a colloquy with Leveto, confirming that: he understood the charges against him and the elements of each offense; he was aware of the maximum penalty for each charge; he was cognizant that rules of evidence and rules of criminal procedure govern the process for trying the case and the admission of evidence; and that he was aware that the judge could not advise him on the rules.

The District Court found Leveto competent to waive counsel, but advised: “... in my opinion, Mr. Leveto, a trained lawyer would defend you far better ... than you could defend yourself. In my opinion it is extremely unwise of you to try to represent yourself....” The District Court concluded: “I strongly urge you to proceed with counsel, but it is your constitutional right to a knowingly [sic] and voluntary waiver of counsel.” At the end of this colloquy the District Court asked: “... do you still desire to represent yourself and give up your right to be represented by a lawyer.” Leveto responded: “I do, your Honor.” The District Court acknowledged his waiver and appointed the attorney as stand-by counsel.

Leveto aggressively pursued his defense, filing numerous motions, including: motions for clarification; motions to dismiss parts of or all of the charges; a motion to disclose evidence; and a motion to suppress evidence based upon an invalid search warrant. Leveto also appealed his detention order. Finally, Leveto undertook plea negotiations with the government.

The District Court notified the parties on April 27, 2005 that trial would commence on May 28, 2005. One week before trial was to begin, Leveto filed a 42 U.S.C. § 1983 action against Judge Cohill, the presiding judge, alleging bias in the handling of pre-trial motions.

On the evening before trial, Leveto mailed from jail a motion to recuse Judge Cohill, on the ground that the Judge was now a defendant in a lawsuit filed by Leveto. At the morning conference before jury selection, the District Court orally denied the motion, stating that such a maneuver would “open the door for any defendant any time to file an action against the Judge personally and then get him to recuse .... ” Upon this denial, Leveto next expressed his desire to have a separate hearing on the matter, before a different judge. The District Court denied this request, declaring that jury selection would commence as scheduled. At that point, Leveto stated: “I can’t take part in a mock trial. This motion that was filed with the Court deserves more of a discussion than just a denial.”

Moments later, as jury selection was about to commence, Leveto said at sidebar: “After some new issues had come up, I had additional due process concerns and I am asking to be represented by counsel.” The District Court reminded him that counsel had been appointed early in the process, but that “you didn’t want to take advantage of it.” The following exchange then occurred:

Leveto: Well, due to some of the newer developments, Your Honor, I believe that I no longer feel comfortable pro se and I do need to be represented by an attorney.

Judge: Well, this is a bit late to be asking that, so the motion is denied.

During voir dire proceedings, Leveto repeatedly expressed his desire for an attorney. In each instance, the District Court denied the request and advised Leveto to consult with stand-by counsel, who was present throughout all of this time.

As the trial began, the District Court asked Leveto if he wanted to make an opening statement. He said:

You know, Your Honor, due to the sheer intimidation of all of this — I really believed that I could represent myself, but I seem to be having difficulties and mental blocks, and I am asking you again to have an attorney represent me.”

At the close of the government’s case, Leveto asked to make an opening statement. The District Court granted the request, but cautioned “There will be no more talk about not having a lawyer. You waived that clearly in June of 2004.” A discussion between Leveto and the District Court ensued.

Judge: Under the circumstances of this case, I can’t imagine stopping now and appointing [the standby counsel] or anyone else to represent you and prepare to defend a case like this. You can’t do it. You can’t operate that way.

Leveto: I’m aware of that, Your Honor. That is, [sic] why before we started, I reasserted the right and I filed the action against you a week before the trial.

Finally, later in the -trial the following exchange occurred at side-bar after Leveto raised the counsel issue again:

Leveto: I just was not aware that you couldn’t relinquish [a waiver of the right to counsel]. I know that I did it. I am sure that everyone knows that I did it here.

Judge: But, you can’t relinquish it the day of the trial. This has been pending for years and no lawyer could possibly go in and act as a lawyer the day of the trial in a case like this without preparation time. And in the interest of justice, the thing has to move along.²

The counsel issue did not arise in the remainder of the trial. On June 2, 2005, a jury reached a verdict of guilty on the three counts brought against Leveto. The District Court entered a judgment of conviction and sentence on October 14, 2005. Leveto appeals this judgment.

III.

A.

Leveto claims that his Sixth Amendment rights were violated when the court denied his request for counsel.³ Our examination of the record leaves no doubt that Leveto properly made a conscious and informed choice to waive his Sixth Amendment right to counsel and to proceed pro se. United States v. Welty, 674 F.2d 185, 188-89 (3d Cir.1982); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Nonetheless, Leveto argues that, in spite of the waiver, we and the District Court are obligated to give his request for counsel deference of the highest order. See e.g. United States v. Proctor, 166 F.3d 396, 403 (1st Cir.1999); United States v. Pollani, 146 F.3d 269, 273 (5th Cir.1998). We do not find any authority to support Leveto’s position.

In Proctor, the court reversed the district court’s denial of a defendant’s post-waiver request for counsel, stating categorically that it is “hard to imagine an explanation for denial [of a request by a pro se defendant for legal counsel] that would withstand scrutiny.” Yet, the defendant in Proctor made his request at a motions hearing one month before the start of trial. Further, the court stated in dicta that the “last minute timing” of a request could provide a basis for the denial of a request that would pass constitutional scrutiny. Proctor, 166 F.3d at 403.

In Pollani, the defendant requested counsel only four days before trial. Reversing the district court’s denial of the request, the Court of Appeals of the Fifth Circuit reasoned “[the attorney] could have presented a better defense with three days of preparation than could Pollani with three months.” Pollani, 146 F.3d at 273. Importantly, however, the Court of Appeals upheld the district court’s denial of the continuance that first accompanied Pollani’s request for counsel. It reversed the district court’s decision regarding counsel mindful of the fact that Pollani had renewed his motion for counsel after explicitly stating that he no longer sought a continuance. Id. Delay, therefore, was not a proper basis for the denial of his motion.

-In both cases, as with all of the cases cited by Leveto, the factual contexts of the requests for counsel are significantly distinguished from the present case.⁴ None of the cases cited by Leveto, nor any other precedent we could find, supports Leveto’s extreme position that a defendant’s post-waiver request for counsel is to be given virtually unqualified deference.

To the contrary we find wide agreement that, once waived, the Sixth Amendment right to counsel is no longer absolute. See e.g. United States v. Solina, 733 F.2d 1208, 1211-12 (7th Cir.), cert. denied, 469 U.S. 1039 (1984); Menefield v. Borg, 881 F.2d 696, 700 (9th Cir.1989); Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982); United States v. Merchant, 992 F.2d 1091, 1095 (10th Cir.1993); United States v. West, 877 F.2d 281, 286 (4th Cir.1989). We reaffirm that questions arising from a defendant’s Sixth Amendment absolute right to professional legal counsel receive plenary review. See e.g. United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir.1995). Yet, once the right has been properly waived, as is the case here, we are persuaded by the broad consensus of other courts that the consideration of a .defendant’s post-waiver request for counsel is well within the discretion of the district court. See e.g. Solina, 733 F.2d at 1211-12; Menefield 881 F.2d at 700; Merchant, 992 F.2d 1091, 1095, n. 6; West, 877 F.2d at 286.

Moreover, while we have a strong interest in safeguarding a defendant’s access to professional legal representation (see Martinez v. Court of Appeal, 528 U.S. 152, 161, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000)), other factors necessarily play an important role in a district court’s deliberation of a post-waiver request for counsel. Certainly, evidence of a defendant’s dilatory motive is properly considered as a basis for denial. Moreover, particularly as the trial date draws nearer, the district court can and should consider the practical concerns of managing its docket and the impact that a request may have on its general responsibilities for the prudent administration of justice. See West, 877 F.2d at 286; See also United States v. Criden, 648 F.2d 814, 818 (3d Cir.1981). The Court of Appeals of the Seventh Circuit aptly stated:

A criminal defendant has a constitutional right to defend himself; and with rights come responsibilities. If at the last minute he gets cold feet and wants a lawyer to defend him he runs the risk that the judge will hold him to his original decision in order to avoid the disruption of the court’s schedule that a continuance granted on the very day that trial is scheduled to begin is bound to cause.

Solina, 733 F.2d at 1211-12.

Indeed, a pro se defendant’s knowing and voluntary assumption of such risks is at the heart of our requirement of a thorough colloquy to ensure that a defendant’s waiver of the right to counsel is explicit, uncoerced and well-informed. Welty, 674 F.2d at 188-89; United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir.1995). For all of these reasons, we will not find a Sixth Amendment violation in a trial court’s denial of a defendant’s post-waiver request for counsel unless the district court’s good cause determination was clearly erroneous, or the district court made no inquiry into the reason for the defendant’s request. See Goldberg, 67 F.3d at 1098.⁵

In this case, Leveto argues that he should be granted a new trial because the District Court did not make any inquiry into his motion for counsel. Leveto also argues that the District Court denied his request on the basis of delay, and in doing so it erred. Further, Leveto maintains that the potential disruption to the proceedings caused by this last-minute request did not provide a sufficient basis for the court’s denial of his motion. We agree that the District Court denied Leveto’s request due to the timing of the motion and the likelihood for delay, but we disagree that the District Court’s decision was error.⁶

The significance of representation by professional legal counsel demands that any decision that touches upon the availability of counsel must be investigated and explained on the record. Yet, we do not insist upon a formal inquiry or colloquy where the rationales for the request and decision are clearly apparent on the record. See United States v. Peppers, 302 F.3d 120, 133 n. 12 (3d Cir.2002). We find here that events just prior to Leveto’s motion for counsel obviated the need for a formal inquiry about the underlying reasons for his request and the District Court’s decision.

Immediately before Leveto’s morning-of-trial request for counsel, the District Court considered his motion to recuse, mailed from prison the night before. Leveto argued that Judge Cohill had a conflict of interest because he was named as the defendant in Leveto’s § 1983 lawsuit, filed only one week earlier. The District Court ruled that this motion lacked merit, and it went further to characterize the motion to recuse as a thinly veiled tactic to manipulate the proceedings. Leveto asserted that his motion deserved a separate hearing by a different judge. Upon hearing that jury selection was going to commence, Leveto told the court that he refused to participate in what he characterized as “a mock trial.”

Moments later, when the venire had been seated, Leveto requested counsel on the basis of “some of the new issues that had come up” and his “additional due process concerns.” The District Court had already considered the substance of these “new issues” and “due process concerns” just minutes earlier and found them to be little more than last-minute machinations by the defendant. Moreover, later in the proceedings, Leveto explained to the District Court that he was overwhelmed by the task of representing himself. While Leveto’s rationale appeared to have changed, there is no doubt that the reasons for his motion were fully expressed.

Generally, we would hold that a reasonable inquiry of a post-waiver motion for counsel is necessary both to ensure the integrity of trial proceedings and to aid our review. We find here that a common sense reading of the entire record provides us with a clear understanding of Leveto’s rationale for his motion. For this reason, we are satisfied that the District Court was fully aware of the substance of Leveto’s motion for counsel, and we find that the District Court did not err by failing to engage in a formal colloquy specifically focused upon the underlying rationale for the motion for counsel.

Leveto next argues that the court improperly based its denial of his motion for counsel upon the issue of delay. We disagree. Leveto contends that the issue of delay should not have been considered by the District Court because he never requested a continuance of the trial. He also argues that standby counsel would have been able to assume his representation without delay. These arguments are meritless.

In considering a motion, the District Court is always charged with managing the cases on its docket with a vigilant concern for the efficient administration of justice. See United States v. Mellon Bank, N. A, 545 F.2d 869, 873 (3d Cir.1976). We cannot, as Leveto advocates, hamstring the discretion of the district court by limiting its consideration of delay to only those instances where a continuance is expressly requested. As a matter of law, a district court does not err by considering sua sponte the potential delay or disruption that would result from a change of counsel. Therefore, even if Leveto did not intend to request a continuance, the District Court did not err in considering the issue of delay in its decision on his post-waiver motion for counsel.

Moreover, given the timing of Leveto’s motion, we would expect the District Court to factor delay issues into the decision on the motion, particularly in a case like this where the District Court was clearly familiar with the central issues and the parties of the case, and the scheduling complexities were obvious. We need not dig deep into the record to understand the District Court’s immediate assessment that a day of trial motion for counsel would have necessitated delay, and that such a delay was onerous. After over one year of pre-trial proceedings, the trial judge was well aware of the intricacies of this tax case. The District Court was unquestionably competent to make its own assessment of the implications and feasibility of an immediate change in counsel at that point in the proceedings.

Also, as the judge was no doubt aware, the logistics of scheduling proceedings in this case were unusually complex. The trial judge was required to travel over 125 miles each way to reach the courthouse, while managing dockets in both Pittsburgh and Erie, Pennsylvania. Standby counsel also had a similar commute. Moreover, the government’s attorneys traveled from Washington D.C., a journey of over 350 miles each way. Given that all of these people, with the venire, were in the courtroom at the time of the motion, and were prepared to commence trial on a heavily detailed tax fraud issue, we do not find any error in the District Court’s assessment that Leveto’s post-waiver motion for counsel would necessitate a delay, and that such a delay was onerous. Whether or not Leveto actually requested a delay is, therefore, irrelevant to our conclusion.⁷

We next turn to the issue of whether the timing of the request constitutes good cause to deny a post-waiver request for counsel. We agree with the Court of Appeals of the Seventh Circuit when it stated the following.

Trial courts are thus faced with a dilemma. On one hand, a trial judge is hard-pressed to deny the aid of counsel to a defendant who initially seeks to represent himself but later declares himself legally incompetent to proceed any further, and on the other hand, the last minute grant of a continuance can cause serious inconvenience to judge, jury, opposing counsel, witnesses, and other litigants. (internal quotations and citations omitted.)

United States v. Tolliver, 937 F.2d 1183, 1187 (7th Cir.1991); Moreover, we agree that the last-minute timing of a motion is generally a proper factor in considering whether to grant the motion, particularly where, as is the case here, the timing of the motion is part and parcel with the consideration of whether disruption would result if the motion was granted. See Solina, 733 F.2d at 1211-12 (“We are inclined to defer to [the judge’s] intuition [regarding defendant’s intent to delay on the eve of trial], but in any event believe that the scheduling problems the continuances would have caused were in themselves sufficient ground for refusing to delay the trial.”); Proctor, 166 F.3d at 403 (The “last minute timing” of a request could provide a basis for the denial of a request that would pass constitutional scrutiny.); Pollani, 146 F.3d at 273 (The district court would be justified in denying a continuance attached to a post-waiver request for counsel because the defendant waited too long to retain counsel.).

As we have already stated, the District Court was well-informed about the complexity of the case, and fully capable of judging the length of delay that would have been necessary for an attorney to properly assume the representation of Leveto at trial. Particularly given the distances traveled by the judge, stand-by counsel and the government’s attorneys who all were present expecting trial to begin, the disturbance that would have resulted from a change of counsel at that point was obvious. Moreover, Leveto never gave any signal to the court that he was reconsidering the waiver of his right to counsel. Therefore, the court was unable to proactively minimize disturbance to all involved in the case. Finally, the case already had been pending for several years.

For all of these reasons we will find that the District Court did not violate the Sixth Amendment in denying Leveto’s post-waiver request for counsel.⁸

B.

Leveto next argued that he was due a new trial because evidence obtained by the search warrant was improperly admitted into evidence. His first assertion is that, under the terms of the Federal Rules of Criminal Procedure, the Code of Federal Regulations, and a Directive of the Tax Division of the United States Department of Justice, the I.R.S. agent lacked the authority to apply for the search warrants at issue here. We do not find any merit in Leveto’s argument.⁹

The District Court correctly concluded that the I.R.S. agent had authority to request a search warrant. I.R.S. agents are “federal law enforcement officers” because they are “engaged in enforcing criminal laws” and are “authorized by the Attorney General” to execute warrants under 28 C.F.R. 60.2(a) and 26 U.S.C. 7608(b)(2)(A).

Moreover, the District Court correctly found that Tax Division Directive No. 52 (asserted by Leveto as de-authorizing I.R.S. agents from applying for search warrants) does not provide any substantive right to Leveto to challenge the search warrants. See United States v. Caceres, 440 U.S. 741, 753, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). Leveto also failed to provide any evidence that the procedures outlined in the Directive were violated. We do not find that the District Court abused its discretion in denying Leveto’s motion to suppress evidence on this basis.

c.

We also disagree with Leveto that the search warrant at issue in this case was a general warrant. A warrant is not general unless it can be said to “vest the executing officer with unbridled discretion to conduct an exploratory rummaging through [defendant’s] papers in search of criminal evidence.” United States v. Christine, 687 F.2d 749, 753 (3d Cir.1982). Key to Leveto’s argument is that the affidavit, which did state particulars, was not incorporated by reference on the warrants. The only attachment was a list of the type of documents to be seized which used generic terms.

The District Court correctly concluded that, to the extent that the warrant was “generic,” it was merely overbroad. Such a defect can be cured by an affidavit that is more particularized than the warrant. Doe v. Groody, 361 F.3d 232, 240 (3d Cir.2004) (“So long as the actual search is confined to the narrower scope of the affidavit, courts have sometimes allowed the unincorporated affidavit to ‘cure’ the warrant.”) Moreover, barring all else, the good faith exception applies in this case. The agents conducting the search were aware that there was a search warrant, and they were briefed on both the search warrant and the affidavit. United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For these reasons we find that the District Court did not err.

D.

Finally, Leveto claims that the I.R.S. agent acted in bad faith in seeking the issuance of an administrative summons. The I.R.S. may validly issue an administrative summons pursuant to 26 U.S.C. 7602, but would act in bad faith if it did so after making a decision to refer the matter for prosecution by the Department of Justice. See Pickel v. United States, 746 F.2d 176, 183-84 (3d Cir.1984). The District Court correctly found that Leveto did little more than make bald assertions, failing to meet his heavy burden of proving bad faith in the procurement of the summons. See United States v. Jose, 131 F.3d 1325, 1328 (9th Cir.1997) (en banc) (citing LaSalle, 437 U.S. at 317, 98 S.Ct. 2357). We do not find error in the District Court’s ruling.

E.

For all of these reasons, we will affirm the order of judgment and sentence of the District Court.

1 . The District Court attempted to conduct a hearing one week earlier, but continued the proceeding upon discovering that legal counsel for Leveto was not present. The first hearing was conducted by Judge Maurice Co-hill. The second hearing was conducted by Judge Sean McLaughlin.

2 . The government points to the fact that the case was tried in Erie, Pennsylvania, but the Judge lived in Pittsburgh, Pennsylvania and stand-by counsel lived in Butler, Pennsylvania. Further, the government’s attorneys and witnesses traveled from Washington, D.C. and other distant locations. Finally, the venire had been assembled from a geographic area that is roughly equivalent to one-quarter of the Commonwealth of Pennsylvania. We take judicial notice of the fact that both Pittsburgh and Butler are over 100 miles from the Erie federal courthouse, and that Washington, D.C. is approximately 370 miles away from the Erie federal courthouse.

3 . Our jurisdiction over the final judgment of conviction is found in 28 U.S.C. § 1291.

4 . We also note that, in Pollani, the court's comments regarding the ability of counsel to represent the defendant with very little preparation time is, necessarily, relevant only to the criminal case at issue.

5 . We agree with the Court of Appeals of the Ninth Circuit that a constitutional violation occurs where a trial court's denial of a request for counsel is based purely in a punitive notion. Menefield v. Borg, 881 F.2d 696, 700 (9th Cir.1989) ("A trial court cannot insist that a defendant continue representing himself out of some punitive notion that the defendant, having made his bed, should be compelled to lie in it.”). Moreover in certain circumstances "a rigid insistence on expedition in the face of a justifiable request for delay can amount to a constitutional violation.” United States v. Rankin, 779 F.2d 956, 960 (3d Cir.1986). We do not find evidence of either concern in this case.

6 . The District Court failed to forthrightly state the rationale for its ruling on the record. Nonetheless, we find that the plain meaning of the court’s multiple statements reveal the underlying reason, and we agree with Leveto that it was that the timing of the motion and resulting delay. In response to Leveto’s first request, the District Court stated: "Well, this is a bit late to be asking that, so the motion is denied.” In response to Leveto’s renewed request at the close of the government's case the District Court said "Under the circumstances of this case, I can't imagine stopping now and appointing [the stand-by counsel] or anyone else to represent you and prepare to defend a case like this. You can’t do it. You can’t operate that way.” Finally, when Leveto pressed the issue again a short time later, the District Court responded "But, you can’t relinquish [your prior waiver of counsel] the day of the trial. This has been pending for years and no lawyer could possibly go in and act as a lawyer the day of the trial in a case like this without preparation time. And in the interest of justice, the thing has to move along.” Leveto understood all of these comments to mean that the timing of his motion and the delay that would result grounded the District Court's decision to deny his motion. We agree.

7 . We stress that, as in the case before the Court of Appeals of the Fifth Circuit, our assessment of whether substantial evidence supports a finding that a delay would be necessary to accommodate a post-waiver request for counsel is fact-intensive. See Pollani, 146 F.3d 269, supra.

8 . We have held in a somewhat analogous case that a defendant’s request to proceed pro se was properly regarded as untimely when it was made after "meaningful trial proceedings” have begun. Pitts v. Redman, 776 F.Supp. 907, 920-921 (D.C.Del.1991), aff'd. 970 F.2d 899 (3d Cir.), cert. denied, 506 U.S. 1003, 113 S.Ct. 611, 121 L.Ed.2d 545 (1992). Though this is often a useful distinction, in this instance we would be left to parse the precise moment when such proceedings have begun. That strikes us a useless exercise here because it ignores the reality faced by the judge in this particular instance. The "serious inconvenience to judge, jury, opposing counsel, witnesses, and other litigants” would have been identical whether the motion came moments before or moments after the court formally initiated the proceedings.

9 . We review the denial of a suppression motion for clear error as to the underlying facts, and exercises plenary review as to the legality of the denial in the light of properly found facts. United States v. Brownlee, 454 F.3d 131, 137 (3d Cir.2006).